As I mentioned in my last post, in 2003 and 2010 I published newspaper columns discussing racist names of professional sports teams – columns that still resonate given Douglas Cardinal’s recent failed attempt to enjoin the Cleveland Indian baseball club from using its name and logos in Toronto during the American League Championship series against the Blue Jays. Here is the column first published on September 3, 2010. (Read the 2003 column here.)

In support of the proposed mosque and Muslim community centre near “ground zero” of September, 2001, President Obama noted that freedom of religion was fundamental to U.S. history, values, and law. When critics and the usual gleeful troublemakers characterized this as a further insult to the memory of people who died in the terror attacks, the president said he was not talking about the project’s wisdom; he was remarking on the right of the American Society for Muslim Advancement and the Cordoba Initiative to undertake it. Some accused Obama of backpedalling, but of course he was making a legitimate distinction between law and social niceties. Correspondents to newspapers have put it more plainly: the fact that you have a right to do something doesn’t mean it’s the right thing to do.

American law is particularly alive to this distinction regarding the associated right of free expression. Over the years, however, it has reversed the “it might be your right but it ain’t right” homily, permitting all sorts of nastiness as protected by the First Amendment: in politics and entertainment, you have the right to say pretty well whatever you want, never mind that it’s hurtful and unusually rude. The notorious example is the mock Campari ad in Hustler magazine, a parody relating that Reverend Jerry Falwell’s “first time” was with his mother, drunk in an outhouse: Falwell v. Hustler, 485 U.S. 46 (1988). Then there is what has come to be known as “the Redskins case.”

It is not surprising that the controversy is a child of the 1970s. What remains remarkable is that it has not only survived the cacophony of political correctness since (including the idiot insistence that “I’m entitled to my entitlements” is the same thing as having rights) and particularly that it has survived the increasing sensitivity – and newfound decency – regarding racial stereotyping. Twenty-eight years later, we still have a football team of mostly African-Americans, and notably bereft of North American aboriginals, called the Washington Redskins. Then, of course, there are baseball’s Cleveland Indians and Atlanta Braves, hockey’s Chicago Blackhawks, and so on. It’s no wonder native North Americans have come to feel singled out for public ridicule.

I last wrote here about such commercial stereotyping in 2003, when Colleen Kollar‑Kotelly of the U.S. District Court struck down a ruling by the Trial Trademark and Appeal Board that the mark “Washington Redskins” was unlawfully disparaging under the Lanham Act. Since then, the matter has shuttled between Judge Kotelly’s court and the U.S. Court of Appeals, the upshot being that the complaint was dismissed on the basis of laches: the plaintiffs had sat too long on their right to object – Pro-Football Inc. v. Harjo, 565 F.3d 880 (2009, U.S.C.A, D.C.).

Recently, the U.S. Supreme Court refused to hear a final appeal. Still, while progress has been spotty on the “right thing to do” front, and moribund on the legal front, the battle remains joined. A recent edition of CBC Radio One’s “Revision Quest” renewed the debate in Canada. In 2005, the National Collegiate Athletic Association (NCAA) ruled that, if any of its members use aboriginal imagery or team names, they cannot host NCAA championships. And to get around the laches argument, in 2006 a younger group of plaintiffs filed a new mark-cancellation petition against the Redskins organization. It now becomes active, at the ultimate failure of Harjo.

Often the counterargument in these cases is that the team names and the associated artwork and activities – even the so-called tomahawk chop and woo-woo “war cries” among fans – are homages not insults. And sure enough, though I see “Redskins” as a racist stereotype, as a “European” I don’t feel anything visceral against team names such as Blackhawks, Fighting Sioux, or Braves. But first peoples rightly point out that the bigger, cumulative picture is all monochrome, all martial, the picture you’d get by insisting the New York Yankees could as easily be called the New York Village Bombers while the Giants became the IED Disablers.

This might sound simplistic, but for me it all comes down to Chief Wahoo. As I said in 2003, viscerally I find the logo-man for the Cleveland Indians, deliberately cartoonish with his toothy smile and single-feather headdress, attractive and amusing. But, again, “he’s gotta go, along with the Redskins mark. As one view puts it, Chief Wahoo has become the ‘little red Sambo’ of the 21st century.”

When I am tempted to say it’s all just in fun, I put myself in the other guys’ footwear (whatever that might be): I imagine a team called the New York Israelites, whose logo-man is Rebbe Oyvey. Rebbe Oyvey is a dancing chassid with an ecstatic, otherworldly smile, his eyes closed, his sidelocks and long beard bouncing under his black hat, his long black coat flying around his shins.

Would I find it offensive? Not really. It’s dumb but sort of happy-making. There’s no offensive mens rea. But what if there were also, I don’t know, the New Jersey Cardiologists, featuring a brow-furrowed M.D. and his stethoscope? And the Los Angeles Media and Entertainment Barons and their plot to conquer the world … of baseball, and the Chicago Professors with a similar aim regarding basketball?

Even if there were only the New York Israelites and Rebbe Oyvey, would I find them a heartfelt homage? No. I would find them a caricature that has nothing to do with either Judaism or sport. That would be my right. Seven years later, in 2010, what a shame we have to go to law to make the right thing to do a thing that’s a right.

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